Tort Law

Negligence

C will need to prove that D owed a duty of care, that D breached that duty of care and that D’s breach caused C’s damage: Donaghue v. Stevenson.

1st part of Negligence

Following Robinson, the three-part test from Caparo on whether a duty of care is owed will only be applied in full, in new or in controversial cases.

2nd part of Negligence

D will have breached his duty of care if he failed to reach the standard of care required of the reasonable person in the circumstances: Blyth

Special Characteristics

When a person holds himself out to the public as possessing a special skill, he is required to reach the standards normally expected of persons doing that activity: Nettleship V. Weston

Risk factors

The more likely that a risk of harm will occur, the higher the standard of care expected and the more precautions that D needs to take: Bolton V Stone.

3rd part of Negligence.

C must prove that D’s breach of duty was the factual cause of the damage, using the ‘but for’ test: Barnett

Intervening acts (if relevant)

Explain that the legal chain of causation will be broken by an act of nature, C’s own conduct or an act of a third party.

Damage too remote?

D will be able to avoid liability for the damage that is too remote from his wrongdoing if he can prove that the kind of harm suffered was not reasonably foreseeable: The Wagon Mound. If the kind of damage is reasonably foreseeable, normally D will be liable even though the precise cause of the harm, or its full extent, could not be foreseen: Huges V Lord Advocate.

D must take C as he finds her.

If the kind of damage is reasonably but is much more serious because C has a pre-existing medical condition that makes her more vulnerable then the ordinary person, then D is liable for the full extent of the harm. The damage is not too remote. This is known as the eggshell skull rule: Smith V Leech Brain.

Contributory negligence

Under the Law Reform Act 1945 the amount of damages awarded against D can be reduced by the judge according to the extent to which C has contributed to her own harm.

Consent

C was aware of the specific risk of injury that occurred and c willingly agreed to run the risk. Where C is intoxicated, the defence is not available if c was so intoxicated that she was incapable of appreciating the specific risk: Morris V Murray.

Primary Victim

C is a Primary victim because they are within the zone of physical danger.

PV Psychiatric Part 1

To establish a duty of care C must prove that he suffered from a recognised psychiatric condition that is severe and long term: White

PV Psychiatric Part 2

C must show that physical or psychiatric injury was reasonably foreseeable due to the horrific event: Page V Smith

PV Psychiatric Part 3

D will have breached his duty of care if he failed to reach the standard of care required of the reasonable person in the circumstances: Blyth

PV Psychiatric Part 4

D’s breach of duty must have caused the psychiatric injury suffered by C.

Secondary Victim

C is a Secondary victim because they are not within the zone of danger, as they are not at risk of physical injury.

SV Psychiatric Part 1

To establish a duty of care, C must prove that she suffered from a recognised psychiatric condition that is severe and long term: White. It must be reasonably foreseeable that a person of normal fortitude might suffer psychiatric injury from the horrific event.

SV Psychiatric Part 2 (ALCOCK)

1. a close relationship of love and affection between C and someone involved in the incident of the sort normally enjoyed by spouses and children.

2. close proximity in time- the SV must witness the event itself or its immediate aftermath.

3. close proximity in space- C must witness the event or its immediate aftermath with her own unaided senses.

SV Psychiatric Part 3 (Breach)

D will have breached his duty of care if he failed to reach the standard of carer required by the reasonable person in the circumstances: Blyth

SV Psychiatric Part 4 (caused)

It must be the cause of C’s psychiatric injury.

Negligence equation

Duty of care+ Breach of duty+ Damage caused= Liability.

PEL Definition

Pure economic loss is financial loss which is not directly caused by physical injury to C or damage to C’s property. It is different to Consequential economic loss which is loss which arises directly from the physical damage suffered by C.

Hedley Byrne (PEL)

A claim may be made in tort by those who suffer PEL because of relying on D’s negligent advice, providing there was a special relationship between C and D. If this is the case D will owe C a duty of care.

Caparo Industries rules for special relationships.

1. D must have expert knowledge relating to the advice.

2. D must have given the advice for a known purpose and assumed responsibility for the advice.

3. D must have communicated the advice to C directly.

4. C does rely on the advice by using and acting on it.

5. D knows, or ought to have known, that C would rely on his advice when deciding whether to go ahead with the relevant transaction.

6. It was reasonable in the circumstances for C to rely on the advice.

Part 3 PEL

D will have breached his duty of care if when giving advice he failed to reach the standard of care required of a reasonable advisor in the circumstances.

Part 4 PEL

D’s Breach of duty must have caused the pure economic loss suffered by C. The PEL must be reasonably foreseeable, otherwise it will be too remote.

Occupier + Premises.

An Occupier is someone who has some degree of control over the premises at the time of the incident: Wheat. Premises includes land and permanent buildings, but also covers fixed and moveable structures, including any vessel vehicle or aircraft.

Duty of care, OLA 57

Under the Occupiers’ Liability Act 1957, an occupier owes a lawful visitor the common duty of care. Lawful visitors who are owed the common duty of care include: Invitees, Licensees and those with contractual permission to be on the premises.

Breach Adult visitors.

Under the 1957 Act an occupier will breach the common duty of care unless he takes reasonable care to ensure the visitors will be reasonably safe in using the premises for the purposes for which they are there. The occupier does not have to keep the premises completely safe.

Breach Child visitors

The occupier must be prepared for child visitors to be less careful than adults and as a result the premises must be reasonably safe for a child of that age. If not, D will be in breach of his duty of care. The occupier should guard against any kind of allurement drawing the child onto the land and which places a child visitor at risk of harm.

Caused Damage (OLA57)

D’s breach of the common duty of care must have caused the damage suffered by C. To recover compensatory, the injury suffered or damage to property must be of a kind that was reasonably foreseeable.

Tradesperson

Under the OLA 57 an occupier owes a tradesperson visitor coming onto the premises the common duty of care and will breach it unless he takes such care as in all the circumstances is reasonable to see that the tradesperson will be reasonably safe in using the premises for the purposes for which she is invited to be there.

Tradesperson special defence

Under s.2 of the 1957 act an occupier will have a defence if a tradesperson fails to take normal safeguards against special risks that arise from doing his job.

Tradesperson Breach

D’s breach must have caused the damage suffered by the tradesperson. To recover damages, C must show that she suffered injury or damage of a kind that was reasonably foreseeable.

Independent contractor

Under the 1957 Act, the occupier will not breach the common duty of care if the danger arises out of the negligent work of an independent contractor hired by the occupier.

Three parts for independent contractors.

1. Under s.2 of the Occupiers Liability Act 1957 the occupier will not breach the common duty of care and will have a defence if it was reasonable for the occupier to have given the work to the contractor.

2. The occupier took reasonable steps to choose a competent contractor.

3. The occupier took reasonable steps to check the work had been properly done.

Warnings 1957

A warning about that danger to a visitor may act as a complete defence. Under s.2 of the occupiers liability act 1957, a warning is ineffective unless in all the circumstances it was enough to enable the visitor to be reasonably safe on the premises.

Duty of care for non-visitors

Under the OLA 1984, there is a limited duty of care on occupiers in relation to persons who are non-visitors.

The occupier will only owe a duty of care to a trespasser if: (p1)

He is aware of the danger or has reasonable grounds to believe that it exists.

The occupier will only owe a duty of care to a trespasser if: (p2)

He knows or has reasonable grounds to believe the trespasser is in the vicinity of the danger or may come into the vicinity of the danger.

The occupier will only owe a duty of care to a trespasser if: (p3)

The risk of harm to a trespasser resulting from that danger is one in which, in all the circumstances, he may reasonably be expected to offer the trespasser some protection.

Breach (Adults)

Under the 1984 Act an occupier will breach his duty of care unless he takes such care as is reasonable in all the circumstances to see that the trespasser is not harmed by reason of the danger on the premises.

Breach (Children)

Greater protection needs to be shown to a child trespasser than to an adult trespasser, as a child is less likely to be aware of the risks.

Caused Damage (OLA84)

D’s breach of the duty of care must have caused the injury or death suffered by C. To recover damages, the injury or death must be reasonably foreseeable.

Warnings 1984

Under the 1984 Act, an occupier will not be liable if he takes such steps as are reasonable in all the circumstances to give warning of the specific danger. The warning need not enable the trespasser to be reasonably safe on the premises and there need be no warning of obvious dangers.

Identify the potential C and D (Nuisance)

To succeed in private nuisance, C must have a proprietary interest in the land that D is affecting: Hunter v Canary Wharf, that C is either an owner or an occupier. APPLY. D must have some degree of personal responsibility for the nuisance.

Definition of private nuisance.

D must do an activity that causes substantial and unreasonable interference with C’s land or her ordinary use and enjoyment of the land: Fearn v Tate Gallery.

Substantial Interference

The question is whether an ordinary person in C’s position would regard the interference as substantial. Minor annoyances are insufficient: Fearn V Tate Gallery.

Sensitivity

If C is abnormally sensitive or carries on a delicate trade that is particularly sensitive to disturbance, C will usually only succeed if a person is a person/ business of ordinary sensitivity would suffer substantial interference interference and provided C suffers a foreseeable kind of harm: Network Rail V Morris

Unreasonable interference

C must also prove unreasonable interference. D’s use of the land must be unusual. There will not be unreasonable interference if D’s activity is necessary for D’s ordinary use of his land and conveniently done.

Other Factors

There are other factors that have to be considered by the court in deciding if there is substantial and unreasonable interference.

Locality

There is likely to be unreasonable interference if the location of the dispute between the neighbours means D’s use of his land stands out in that area: Adams V Ursell.

Physical Damage

Where there is physical damage to C’s land the location of the dispute between the neighbours is largely irrelevant. It will be considered unreasonable interference due to the damage.

Duration

The longer the duration of the interference, the more likely it is that the court will regard it as unreasonable due to the damage.

Malice

Deliberate acts by D to annoy C will usually make the interference unreasonable: Hollywood Silver Fox Farm V Emmett.

Act of a trespasser

if a trespasser has caused the nuisance, then D may have a defence, unless D has adopted the nuisance by failing to take reasonable steps to stop it.

C coming to the nuisance is not a defence

D cannot avoid liability by arguing that C became D’s neighbour after D had started doing the activity that is disrupting C’s ordinary use of her land.

It is no defence to argue that…

C could take reasonable steps to avoid the consequences of the nuisance.

Public Utility

Public utility is not a defence to a claim of nuisance: Fearn V Tate Gallery

Prohibitory Injunction (Nuisance)

When D is liable for nuisance, the usual remedy is a prohibitory injunction, ordering D to stop causing the nuisance completely or wishing certain hours. Whether or not the court grants one, depends on the seriousness of the interference and any public interest in allowing the nuisance to continue.

Compensatory Damges (Nuisance)

Compensatory Damages can be awarded by the judge where C has suffered loss. C can only get damages for losses that are reasonably foreseeable and C must take reasonable steps to mitigate her loss.

To Claim under the rule in Rylands and Fletcher…

C must have proprietary interest in the land that is affected, and D must own or control the land that the thing is accumulated on.

Part 1 of 4 RVF

Firstly, the thing causing damage had been accumulated on land owned by, or under the control of, D. The thing must be artificially accumulated on the land, as opposed to being there naturally: Giles V Walker.

Part 2 of 4 RVF

Secondly, the thing is likely to do damage if it escapes.

Part 3 of 4 RVF

Thirdly, there has been a non-natural use of the land. D’s use of land must have been unusual, bringing with it increased danger to others: Transco V Stockport MBC.

Part 4 of 4 RVF

Finally, the thing escaped and caused damage of a kind that was reasonably foreseeable, otherwise the damage will be too remote: Cambridge Water. The escape should be from a place that is outside of D’s control: Read V J Lyons CO.

Act of a stranger.

If an act of a stranger has been the cause of the escape, then D will not be liable, unless C can prove that the stranger’s act was of a kind which D could reasonably have foreseen and guarded against: Rickards V Lothian.

Act of God

The complete defence of an act of God may succeed where the escape is caused by unforeseeable freak weather conditions that cannot be reasonably guarded against.

What must be proved for an employer to be vicariously liable.

Was the act or omission complained of a tort

Was the person who committed the tort an employee

Did the employee commit the tort in the course of his employment or in circumstances closely connected to it.

2nd thing to do in Vicarious

Explain that the act or omission should be a Tort

The control test (VL)

The control test is that someone who has what he does and how he does it controlled by someone else will be an employee: Mersey Docks V Coggins LTD

Economic Reality Test (VL)

The economic reality test, originating in Ready Mixed Concrete V Minister of Pensions, is a modern test that takes account of all the factors in the relationship in order to identify an employee from an independent contractor.

Economic Reality Test Example.

For example, an employee will usually receive regular payments for a defined period, rather than take a fee for a whole job or an employee is unlikely to own the equipment he uses.

Part 4 (VL) (In course of employment)

The employee must have committed the tort in the course of his employment or in circumstances related to it. An employee’s acts are usually in the course of his employment if the employee does an authorised act in an unauthorised way.

Rose V Plenty (VL)

An employer can still be vicariously liable where an employee does an expressly forbidden act, if the ban affects only the manner in which the employee is to perform his duties: Rose V Plenty

Final thing to consider (VL)

Frolic of his own